Strict Scrutiny - The Alitos Let Their Freak Flag Fly

Episode Date: May 20, 2024

Leah and Melissa catch up on the Alitos' upside-down flag situation, an opinion preserving the funding structure of the CFPB, and a racial gerrymandering case out of Texas.Read Jodi Kantor's reporting on the Alitos' flagRevisit our episode recapping the oral arguments in the case challenging the CFPBWe’re giving one lucky listener the chance to win a pair of tickets! Here’s how to enter:Subscribe to Strict Scrutiny’s Youtube channelLeave a comment on our most recent video episode with your favorite Strict Scrutiny moment.The giveaway starts TODAY and ends May 24 at 11:59pm PT. We’ll be picking a winner on/around 5/28 so be sure to keep an eye on your comment. For the full rules, check out the link here: https://crooked.com/strictgiveaway/ Follow us on Instagram, Twitter, Threads, and Bluesky

Sometimes the Alitos give us a little bit too much content. It's overwhelming. Too much is a lot. And I also feel like we don't have Kate here because we're already so excited, Leah. I know. I feel if Kate were here, she'd be like, settle down, bitches. But we're like, no, let's fucking go. We're just doing it.

Exactly. Exactly. And if I say something wrong, you know whose fault it was? Martha Ann? Martha Ann Alitos. Yeah. Okay. Exactly.

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly,

but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. Including the little light treason, or at least support for light treason that surrounds it. We are your hosts for today. I'm Melissa Murray. And I'm Leah Lippman. And here is what we have in store for you today. We are going to start with some news about friend of the pod, Sam Alito, because it turns out Sam Alito resides in a house that displayed an inverted flag that had come to symbolize

stop the steal on the eve of Joe Biden's inauguration. Hence the light treason references that will be peppered throughout the show or, you know, Alito bit of treason, as they say. But don't worry, it's not going to be all Alito all of the time. We're not going to go into the upside down, as it were. We're also going to cover SCOTUS's opinion in the big consumer production case, the challenge to the funding structure of the CFPB. The court upheld the CFPB's funding structure over a dissent by, who else? Friend of the pod, Sam Alito. And we

plan to discuss whether Sam Alito's dissent in that case is more or less incoherent than the statement he gave to the New York Times to defend the Alito household's Stop the Steal lawn display. After that, we will turn to some court culture and we will flag, yes, pun intended, two arguments in the Fifth Circuit's latest attack on the Voting Rights Act, as well as some other things. But first up, the latest news about Samuel Stop the Steelito. Yes, you heard it here first, people. Okay, so Jodi Kantor of the New York Times reports that on January 17th, 2021, days before President Joe Biden's inauguration, the House of Alito flew an upside down American flag.

The Times explains that this upside down flag has long been a symbol of a nation in distress. But in recent years, this nation in distress symbol has actually been appropriated as a cri de corps by those who believe the 2020 election was fraudulently stolen from Donald Trump. So basically, the upside down flag has become a symbol of the Stop the Steal Four Seasons gardening crowd. The New York Times quotes a researcher who says that the inverted flag was a symbol of Stop the Steal and that there were social media posts that encouraged Trump supporters to display inverted flags as part of their support for the view that the election was fraudulently stolen. And at the time of the January 6th

insurrection, local newspapers wrote about the displays of inverted flags and their meaning. Indeed, a political candidate displayed it in the lead up to the inauguration. And as has been noted elsewhere, some of the Capitol rioters even brandished the upside down flag when they invaded the Capitol on January 6th as part of that insurrection. Now, notably, the Alito's neighbors in upscale Fairfax, Virginia were alarmed enough by this display of the upside down flag on the Alito's lawn that they actually took photos of it. Again, this is such a weird and unorthodox thing to do, especially if you are a sitting justice and you are publicly displaying this on your home because

the symbol is so closely associated with a political movement. Your neighbors took the time to actually document it. That's how weird it is. And so this also helps explain why word of the Alito's unusual landscape choices eventually made its way to the Supreme Court. Although I will note, it did take three years for this to come out. The three-year delay between when this inverted flag stopped the seal symbol was displayed and when reports of it came out, lead one to think that perhaps Samuel Alito could have used those three years to come up with some sort of, I don't know, explanation, apologia for what happened. And yet, all he came up with is that he wants you to know it was his wife's fault. Yes, America's favorite feminist decided to throw Martha Ann under the bus.

While Martha Ann is under the bus, let me pause for another feminist side note. It seems really weird to me that two dudes who are absolutely intent on controlling American women and their bodies, Sam Alito and Clarence Thomas, are absolute shit at controlling their own wives. Like, what? Explain that to me. Sirs, kindly get your own houses in order before coming for everyone else's cervix. This is the kind of inconsistent fuckery we expect from Harrison Butker, but not from two men with actual law degrees. For those of you who might have missed it, it appears that Samuel Alito heard Taylor Swift's boyfriend's

teammate, that is Harrison Butker, trad wife TikTok-inspired commencement address and was inspired by it. So let's play a line from that commencement address. I want to speak directly to you briefly because I think it is you, the women, who have had the most diabolical lies told to you. You know, I think Alito thought, well, I think it is you, the women who have had the most diabolical lies told about you rather than to you, but riffing. I have only one question to ask, and that question is, why are men? Also, ladies, you heard it here on Strict Scrutiny, always choose the bear. Always. I'm so glad you're back, Melissa, because I have been wanting to play a game of random Republican appointee to the Supreme Court or bear for the last few weeks. It's always the bear.

Ladies, you have a better shot with the bear. You might live with the bear. With the Republican appointed Supreme Court nominee, you are dying in a parking lot. The bear might let you run. And it's not just that they are going to leave you to die in a parking lot. It's that they're going to say their wife did it because she saw an objectionable and personally insulting sign. But anyways, I don't want to get too deep into a game of the bear because- Back to the real housewives of Fairfax, Virginia. Let's go back to that. All right. So- Or the real housewives of the Ellipse. Who is to say? Who is to say? Anyway, in a statement to the Times, Justice Alito had this to say. I will say this in my best Alito voice. Quote, I had no involvement whatsoever in the flying of the flag.

It was briefly placed by Mrs. Alito with the candlestick in the library in response to a neighbor's use of objectionable and personally insulting language on yard signs, end quote. I did paraphrase a little there. Apologies. It's perfection because there are so many things to say about this objectionable and personally insulting statement. And it's moments like this for which this podcast exists. So again, according to The Times, the neighbor's objectionable and personally insulting yard sign was an anti-Trump sign. So in case it hasn't been clear to you over the last eight years, maybe because you haven't been listening to strict scrutiny for the last five, the Alitos are apparently Trump supporters. I know this will come as a shock to some. Thoughts and prayers to you all. Right, exactly. Leaving aside the fact that I think this does make clear where the Alitos' political allegiances lie, let's focus on the statement.

Because Justice Alito's statement is doing a lot. And not just throwing his wife under the bus as though they had not been married for a zillion years. I mean, my husband did this to me, like, divorce, right? In some ways, it's sweet that Alito treats Martha Ann Alito like he does the rest of American women, just throwing them under the bus in service of his political views. But back to the statement. That's real equality. That's real equality. Exactly. That's an equal protection clause right there. Okay, back to the statement, though. Let's focus.

Focus, Leah. This is where Kate would be really handy. Kate would be on ladies. I know, Kate. We're missing you. The statement is not actually denying the existence of the upside down flag on the Alito's property. That's the first thing. Underscore that. He never denies it. He's like, yeah, I did it. This is like OJ level. What if I did it? If I did it? What are you going to do about it? What are you going to do about it, Dems? Like it's Cam Alito by Sheree. Nor does the statement deny the flag's stop the steal meaning.

Sam is not even saying he didn't know the flag was up there. It was apparently up for a few days. He did nothing. Sam Alito would like you to know that women have the autonomy and freedom to publicly show support for insurrections, but no autonomy or freedom to get out of forced childbirth. That too is an equal protection clause. Liberty. Liberty. This statement is so bad. Like from a PR perspective, so bad. It actually makes me wonder who is doing Sam Alito's publicity? Is it Prince William? Because this is like AI-generated Kate Middleton video PR. Like, this is really bad.

In light of this completely craptastic statement, a number of our listeners chimed in to offer some takes on statements that didn't quite make the cut, weren't quite as shambolic as the statement that Justice Alito did make. So Leah, let's run through a couple of these. I think there's some promising ones here. Yeah. So one option was the flag was certainly not $1,000, which makes it legal, by the way. Definitely didn't taste like a $1,000 flag. Exactly. Didn't fly like a $1,000 flag. Here's another one. I thought the flag was a salmon. So first I posed with it whilst wearing hip waders, and then I ran it up the flagpole,

upside down, as one does. That checks. Another option is I thought the flag was a Wall Street Journal interviewer. So I answered some questions and then ran it up the flagpole. Here's another one. I actually really like this one. The flagpole was otherwise unoccupied. An empty flagpole would have gone to waste if we hadn't flown a symbol of the January 6th insurrection on it. So we are actually environmentalists. See Sackett versus EPA. Alito's out.

Excellent callback to an Alito opinion nonetheless. Another option is the organized bar made me do it by criticizing me. Seems right. Back to the Taylor Swift references. Taylor Swift psyoped my wife. I think that might work. I mean, eras are for everyone, even Martha Ann. And she's in her insurrectionist era. So another option, in an objectionable and personally insulting decision, John Roberts did not destroy the Affordable Care Act when he had the chance, ergo the inverted flag. I like this one because it's really a pivot. Like, I don't want to answer your question, so I'm going to distract you by throwing my colleague under the bus.

Exactly. I like that one. And returning to one of my favorite longtime grievances. I love it. Like, three birds, one stone. I love it. All right, here's my, I actually think this one's probably the best one, right? To commemorate the 70th anniversary of my personal favorite Supreme Court decision, Brown versus Board of Education, because Black Lives Matter, my wife, Martha Ann, and I decided to engage in a civil rights demonstration on our property. But despite those very promising, promising potential statements, the Alitos settled on the statement that basically averred that Martha Annalito was so upset by a neighbor's profane anti-Trump yard sign that she decided

to own the Libs here, her Trump-hating neighbors, by showing support for the vestiges of a coup that threatened American democracy, as one does. The New York Times reports that, quote, around the 2020 election, a family on the block displayed an anti-Trump sign with an expletive. It apparently offended Mrs. Alito and led to an escalating clash between her and the family, according to interviews, end quote. Paging Andy Cohen. Bravo, Andy. I would 100% watch this show about Martha Ann and her neighbors just getting into it, scrapping.

I know. I know. When do you watch this? We have been calling for a Real Housewives of One First Street for a while. So long. So if only the powers that be would listen. And I just want to unpack the fact that apparently the sympathetic case here is that Martha Ann was so upset about people criticizing Donald Trump, she literally let her freak flag fly.

And if anything, this seems to reinforce the inverted flags stop the steal meaning. And we may be staring down the end of Bennifer 2.0. I don't even want to contemplate this. Stop it, Leah. For America. But on a happy note, on a happy note, I personally am glad that the two people who think the worst thing in the world is people criticizing Republican officials found each other in the Alitos. If that's not love, what is? This is a love story. I mean, forget the idea of you and Nicholas Galzatine and a very hot 40-year-old Anne Hathaway. This is a love story that they should be streaming on Amazon Prime. It's a love story. Baby, just say, yes, fly that flag upside down.

Fly it upside down. And blame me for it while you're at it. I think the title should be Freak Flag. And it conveys everything. An American romance. Freak Flag, an American romance. It does make me wonder, why do so many Supreme Court justices find their way into marriages with insurrection-adjacent or

insurrection-sympathizing ladies. I mean, also, you got to wonder, Jane Roberts, when are you going to step up to the playgirl? Martha Ann and Ginny are just running laps around you, right? And, you know, Ginny, was she texting Martha Ann Alito? Is Martha Ann texting Mark Meadows? There's just a lot of open questions here. For a lot of people, this is the first introduction they've had to Martha Ann Alito. But I will say on this podcast,

we have never been in favor of Martha Ann Erasure. We have always said, hmm, keep your eye on the ball. And the ball is Martha Ann. We have rejected Martha Ann Erasure left and right. Since 2019. When people were quick to blame Ginny Thomas for the leak of the Dom's majority draft, we were like, do not sleep on Martha Ann. Because subsequent reporting has revealed that Martha Ann was at

the dinner with the Wrights, at which the Wrights allegedly learned the previewed results of the Hobby Lobby case. Martha Ann is a key figure in whatever this real housewife's tale of the Supreme Court is. So she has talked about how unfairly Sam Alito was treated during his confirmation hearing when people warned. She did leave the chamber in tears. Yes, exactly. When people warned that, for example, he might overrule Roe versus Wade, which he did. She left crying because you weren't supposed to say that part out loud. The truth hurts. So basically, I'm just saying there are two other Republican appointed wives and ladies either get in the game or go home.

And in the immunity argument, Kate wondered why Amy Barrett was throwing out Stop the Steal references that just slid off the tongue. And I do think one answer is she's been having dinner with the Alitos, right? Like you're probably hearing some Stop the Stealing. Probably at a book club with Martha Ann. Yeah. When are we going to get Martha Ann's text messages? Like was she texting about the Biden crime family living off of barges on Guantanamo Bay like Ginny?

These are questions that I need answers to. The New York Times also reminds us that, quote, while the flag was up, the court was still contending with whether to hear a 2020 election case with Justice Alito on the losing end of that decision, unquote. Ahem. We actually have pointed this out before that like the sheer fuckery of some of these folks weighing in on these cases where they seem to have already revealed where they are on particular issues. But this just kind of, again, underscores it, highlights it in yellow. It's almost like the justices cannot be trusted to police themselves on ethics matters. What if they had a code, Leah? What if they made a code?

What if they had a code with no enforcement mechanism that promised they would be good boys and girls? I bet that would fix everything. The pinky swear quote. Exactly. Then there's, of course, there are two big cases currently pending right now that involve January 6th. There's the Fisher case, which involves whether or not that provision of the Sarbanes-Oxley Act was intended to be applied in circumstances like the January 6th insurrection.

And that has not only repercussions for Mr. Fisher, the defendant, but also perhaps for Donald Trump, who's also been charged under that statute. That seems interesting. It's almost as though that case relates directly to stop the steal. And maybe Justice Alito has thoughts about it. Melissa, that is objectionable and personally insulting. So Sam Alito is going to have to fly. Judicial ethics is objectionable and personally insulting. Exactly. And then, of course, I left out the immunity case, right? I mean, does this have anything to do with whether a president should be held criminally liable for perhaps participating in orchestrating inciting an insurrection? Nope. Is it objectionable that a justice I mean, a justice's wife is flying

the flag upside down on their property. And now we know maybe perhaps where they stand on this issue. No, I think that's bad feminism. It is because coverture. She's not an appendage of her husband. Exactly. There's no coverture anymore. Exactly. True feminism means allowing the wife of Supreme Court justices to express sympathy for the vestiges of a failed coup that threatened American democracy. It has nothing to do with their husbands.

Nothing. And he never at any point stepped in and said, you know, Martha Ann, I am a sitting justice of the Supreme Court. This is probably not great optics for me. And then she was like, fuck you, Sam, I do what I want. Feminism. Feminism. And Sam Alito is like, these are the kinds of women's rights I can get behind. that the Alitos have kind of tipped their hand about where their political allegiances lie, in part because we're so over this part. Like, we've been saying this for five years.

Like, this doesn't surprise us in any way. Like, we've known that- Sam Alito was writing this into opinions and saying it at arguments. This is just the latest in the giant fuck you that Sam Alito provides to the American public, democracy, rule of law, ethics, the institutions of American governance. And it is worth spending time.

I mean, maybe this will be one thing that kind of catches on with people. The bar is literally in hell, Leah. Like they don't have any, there are no guardrails on them. There are no requirements for them to actually be ethical. Like basically John Roberts is that Ben Affleck's meme, like outside smoking furiously while holding a Dunkin' Donuts cup. That's John Roberts right now.

John Roberts for the end of time. Like will these face-eating leopards stop letting their freak flags literally fly? Answer no. I wouldn't be surprised if they put an upside-down flag on the court's flagpole. Like, who's to stop them? They're literally in who-gon-check-me-boo mode. Yes, and they have been for a while. Because they have a 6-3 conservative supermajority.

They have a 6-3 conservative supermajority. They overruled Roe v. Wade, took away women's bodily autonomy, and nothing happened to them, right? Like some polls showed diminishing public opinion for the Supreme Court and nothing else has happened. And so why would they stop? literally dying for Donald Trump to be president again. So they can step down and retire and be replaced by younger movement conservatives who will keep this going for forever. And they would also like to take Sonia Sotomayor's seat and Elena Kagan's seat and basically make this an eight to one court with poor Justice Jackson just fighting it out. Like they would love for the opportunity to literally have a Republican in office forever. So if nothing else, vote for the court, like literally vote for the court. Yes. And again, it's difficult because it's not like that vote, this upcoming election is going to return the court to a majority of sane people, right? But what it does is it preserves the possibility that we are not

stuck with five decades of MAGA-curious freak flag flagging, stop the steal, sympathizing Supreme Court justices. And that has to be worth fighting for, right? Sometimes avoiding losses is the most important fight and worth doing a lot for. So on that note, we are going to take a quick break, but we have a favor to ask. Hopefully you don't find it objectionable or personally insulting. And the favor is this. Now until the end of June is the most important time of year for this show and our audience. So if this show gave you a new level of disrespect for House Alito, make sure to subscribe and share this show with your friends. Or if it helps you stay informed without going insane, make sure to subscribe and share with your friends. Thank you so much for your support. So let's talk about a case where Sam Alito lost.

Yes! Okay, let's do that. On to the opinions. We finally got an opinion in one of the big outstanding cases that had been argued in October of 2023. And that, of course, was CFPB versus Community Financial Services Association. This was the case that basically was an existential challenge to the CFPB and its funding structure. And thankfully, the court turned it away. The CFPB lives to see another day, and so does every other federal agency with an external funding structure, which is a lot of federal agencies. So the case involved a group of payday lenders, Community Financial Services Association, because everyone likes a good oxymoron every now and again. unconstitutional because Congress did not fund the agency through its annual appropriations process,

but instead passed a law authorizing the CFPB to obtain money that was drawn from the Federal Reserve System, i.e. from assessments on Federal Reserve banks, which incidentally, is also how the, wait for it, Federal Reserve Board is funded. So again, not just an existential challenge to the CFPB, perhaps an existential challenge to the whole American economy. So again, not just an existential challenge to the CFPB, perhaps an existential challenge to the whole American economy. So more on that in a minute. The challenges argued that this funding structure violated the appropriations clause, which says that, quote, no money shall be drawn from the Treasury, but in consequence of appropriations made by law, end quote. And the galaxy brains on the Fifth Circuit said, stop the steal from the

appropriations. No, I'm just kidding. They said that the appropriations clause makes Congress's power to appropriate money exclusive. And it is so exclusive, in fact, that federal judges get to tell Congress how Congress has to appropriate money, namely through the annual appropriations process rather than through a law designating another funding structure. The Supreme Court disagreed with the Fifth Circuit upholding the funding structure of the CFPB in a 7-2 opinion by noted liberal squish Clarence Thomas. Alito, joined by Justice Gorsuch, dissented because the originalists disagree about where appropriations come from.

As well as babies. Exactly. You caught my vibe. As well as babies. Exactly. You caught my vibe. For the majority, Clarence Thomas wrote, quote, Under the Appropriations Clause, an appropriation is simply a law that authorizes, appropriates money that the federal government raises, it's all good. The Appropriations Clause is satisfied. Congress has done a proper appropriation. And I will just note that this logic is pretty much what Justice Jackson had articulated at oral argument.

And we will play that clip here. The language of the appropriations clause and the way in which it seems to give the legislature the prerogative of the purse. And here we have a statute in which the legislature has exercised that. So basically, Justice Thomas is he peeting. She basically said it. She wants to he peet KBJ. I'm fine. Fine. Like ventriloquize me, bitch. Go for it. The court reached this conclusion, the one that Justice Jackson articulated in the clip we just played, based on text history and congressional practice from around the time of the ratification. And naturally, we have an opinion that is liberally peppered with

Blackstone and Magna Carta sites, because why the fuck not? Justice Kagan wrote an important concurrence that was joined by Justices Sotomayor, Kavanaugh, and Barrett, arguing that subsequent congressional practice supports this conclusion too, or as the concurrence called it, quote, continuing tradition. The concurrence wrote, quote, the way our government has actually worked over our entire experience thus provides another reason to uphold Congress's decision about how to fund the CFPB, end quote. And this echoed the sick burns Justice Kagan had leveled at the challenger's theory during the argument in this case, which you can hear here. But the history of our country just rejects that scheme. I mean, that might have been a way to understand what the framers were doing. But it turns out that

from the very first year, that's not what they were doing. That's not what they did. Annual line item appropriations were some appropriations, but massively not all appropriations. And so you're just flying in the face of 250 years of history. So I said this concurrence was important because I took these four to be saying that even if Clarence goes off the deep end of originalism in some other case, we're not necessarily going to join him as in their version of historical analysis doesn't stop after the first few Congresses. So maybe if and when Clarence or the Fifth Circuit goes dumpster diving into the Federalist papers next time and comes up with something crazy, this group might say that shouldn't be the end of the analysis.

Maybe this is some light, loose signaling to courts of appeal to the extent the courts of appeal care about being reversed, which I'm not sure that they do since they are auditioning for a Supreme Court seat and they need to distinguish themselves from liberal squish Clarence Thomas in order to get that. But another possibility is that the concurrence focuses on this line, which is, quote, whether or not the CFPB's mechanism has an exact replica, its essentials are nothing new, end quote. That line called back to me an exchange between Justice Alito and Solicitor General Prelogger during the argument in the case, which you can hear here. What is your best example of an agency that draws its money from another agency that in

turn does not get its money from a congressional appropriation in the normal sense of that term, but gets it from the private sector. So I can't give you another example of a source that's precisely like that one, but I would dispute the premise that that could possibly be constitutionally relevant. This is a case about Congress's own prerogatives over the purse, its authority. And if Congress has given away too much of its authority by not providing for a durational limit or not providing or providing for too much discretion to the agency, then I don't see how it could possibly fix the problem that other fee-funded agencies directly collected their money from the entities they regulate. So I take it your answer is that you do not, that is not consistent

with any historical practice, but you think that to the extent it is unprecedented, it is unprecedented in a way that is not relevant for present purposes. Is that your answer? Yes, primarily. I think it'd be unprecedented in the way that you could say this is the only agency that has the acronym CFPB. That's obviously true also, but it doesn't track the constitutional value. And the line that I read from the concurrence, which rejects the idea that you need an exact replica in order for something to fall within our historical continuing traditions, might forecast something that this group of four, plus maybe Justice Jackson,

maybe even the chief, could say in a later case, maybe a case like Rahimi, about something about the level of generality that the Supreme Court uses in historical originalist inquiries, not looking for exact replicas, but something similar enough. Can I ask a question, Leah? So this is a sort of weird lineup of strange bedfellows, right? So I'm not surprised by Sotomayor and Kagan. I am surprised a little bit by Kavanaugh and Barrett subscribing to this. Are they going to be faithful to this line of thinking, which is really about the level of abstraction that you have to take when you're doing an historical analysis? Or is this just convenient for them? I doubt they are going to be faithful to it in all cases. The idea that

subsequent congressional practice is something that matters is something that Brett Kavanaugh has suggested is sometimes the case. I'm not aware of a case where Justice Barrett has said this, but I do think it's possible that while the justices were deliberating on this term's cases, it came up in another case. So maybe is kind of a stop in the door for that case. But that's kind of the most I would read from it. I don't take this to be some kind of significant overarching methodological claim that they are going to adhere to in all cases. No, I think that's worth, again, this is the point in the term where they start issuing decisions that I think many people will say suggest that the court is moderating or being more moderate.

And we'll talk more about that. But again, I don't think the fact that this particular concurrence came to be means that Barrett and Kavanaugh are in the bag for reasonable positions going forward. Totally agree. And I also think it's weird, you know, perhaps that KBJ didn't sign on to this opinion, but instead chose to issue her own separate concurrence. So I actually think the fact that she didn't might have been strategic, because if she did, there would have been five. And then that would raise questions about like, what's the majority opinion undermining the Thomas one? Exactly, exactly. Fair. That's a good point. But to KBJ's concurrence, which I actually think is important, too, and I wanted to highlight this.

So in her separate concurrence, which Leah makes an excellent point, this may be to give Justice Thomas the opportunity to have the majority here and to hold that majority. Because I think if she had joined the concurrence, they would have lost Justice Thomas. Justice Jackson, in her separate concurrence, caution would have lost Justice Thomas. Justice Jackson, in her separate concurrence, cautioned that, quote, when the Constitution's text does not provide a limit to a coordinate branch's power, we should not lightly assume that Article 3 implicitly directs the judiciary to find one, end quote. That is a whole word, right? I think this makes a group of five to basically articulate what you were just saying, Leah. It's five justices saying, perhaps more politely, don't adopt theories that are going to blow up the entire edifice of the federal government, at least not right now. I think that that's right.

The realpolitik crew. Exactly. Exactly. The anti-Great Recession round two crowd. Once we did Dred Scott and it started the Civil War, let's not do that again. Let's stop short. Alito was not on board with any of this reasoning, this desire to forestall a possible recession or to dismantle the edifice of the entire federal government and its economy. He dissented, and he did so with all of the logic and coherence that he showcased in his statement to The New York Times. So true Prince William logic here. Justice Alito's dissent maintained that an appropriation is a term of art, which he somehow makes to mean something akin to legislative supremacy. So interestingly, there are no dictionaries supporting this or any discussion of text or usage that would, again, point to or support this conclusion. But never let the absence of evidence get in the way of a good time, right? So interestingly, the logic of this dissent was so completely shambolic and chaotic and brainworming that even Justice Thomas felt compelled to publicly rebuke it in his brief response to the dissent. In his majority opinion, Justice Thomas said, quote, what is more, the dissent never offers a competing understanding of what the word

appropriation means. After winding its way through English, colonial, and early American history about the struggle for popular control of the purse, the dissent declares that, quote, the appropriations clause demands legislative control over the source and disposition of the money used to finance government operations and projects, end quote. The dissent never connects its summary of history back to the word appropriations, end, end quote. I mean, when Justice Thomas is like, huh, what? You've really lost the thread. Yeah, I mean, San Belito managed to write a dissent so bad, Clarence Thomas could effortlessly neg and slam it from the left, leading me to wonder how long before Sam Alito

says Martha Ann drafted this dissent. Probably not too long, maybe three years, who is to say. I did want to cover some of the logic, that's logic in quotes, in this dissent. Some of it is buried in a footnote, specifically Sam. Which is where you usually put all your best quips. Exactly. All the logic should go in a footnote. Line it up, real murderers row in the footnote here. So here's where he buries his effort to say that while he would blow up the CFPB, he wouldn't necessarily do the same to the Federal Reserve Board, which, as we noted, is also funded through

assessments on Federal Reserve Banks, i.e. the same funding stream as the CFPB. So regular listeners will probably recall that during the oral argument in the CFPB case, Justice Kagan and other justices pointed out that the challenger's theory imperiled the Federal Reserve Board and therefore could have triggered the next recession or depression, which comes out in these clips. It sure seems that on your view, the Federal Reserve would also be unconstitutional. Yeah, it's just too important and whatever. I mean, the FDIC, the OCC, they also fail your test. I'm just going to say this dissent has real Drake energy. I'm not going to go so far as to say the majority opinion has kendrick energy maybe the concurrences have this podcast has kendrick energy right like

martha analito jenny they're not like us they're not like us a chord in a minor did she try to strike a chord probably a minor god i'm obsessed with that i'm obsessed with that never fuck with a short gemini from compton they will end you i mean like second only don't fuck with virgos right just forever um they'll just be like working that forever kate would just be here like you think kate knows about the beef? I don't know. I don't know. We should find out. Anyway. Yeah. Okay. Right. So that

was the challenger's theory that the court rejected, right? That appropriations mean some argle-bargle, put a bag on your head, read a dictionary maybe, or not. But Justice Alito and Justice Gorsuch went all in on it, even though they were publicly rebuked by one of their own. So on the Fed, Justice Alito wrote, quote,

the board is a unique institution with a unique historical background. It includes the string of financial panics widely attributed to the country's lack of a national bank. The structures adopted in the Federal Reserve Act represented an intensely bargained compromise between two insistent and influential camps. The funding of the Federal Reserve Board should be regarded as a special arrangement, sanctioned by history, end quote. Oh, you're saying that the Fed is unique because it emerged after a recession and was a product of hard-fought political compromise? Who's going to tell him, Leah? Who's going to tell him?

That silence you can hear is me staring in CFPB. Also, what in God's name is a, quote, special arrangement sanctioned by history? Patriarchy, Leah. Patriarchy. That is a special arrangement sanctioned. Also, slavery. patriarchy yeah patriarchy that is a special arrangement sanction also slavery coverture right exactly disenfranchisement disenfranchisement coverture patriarchy slavery and the federal reserve board um this list of special arrangements sanctioned by history. That's also going to be my new, like, I don't know, phrase word aside from arrangements sanctioned by history. Exactly.

This podcast is a special arrangements sanctioned by history. But you know, Sambolito wasn't done. He also wrote this quote, if the CFPB's financing scheme is sustained, Congress cannot control or monitor the CFPB's use of funds to implement its proposed regulatory changes, end quote. This is not remotely true. It confuses something that is sufficient, i.e. Congress's appropriations process as a mechanism for congressional control over agencies for something that is necessary, because, of course, Congress has marriage tools through which it can control agencies' use of funds. Alito's dissent grossly misrepresents the work it relies on, which is Josh Hafetz at Georgetown, his book Congress's

Constitution that talks about Congress's power of the purse. But again, what could get in the way of a good time? Certainly not fair representation of source material. Well, I do love that Josh went to Twitter to be like, listen, I did not say it like that. It was sort of like the Twitter equivalent of the Jonah Hill meme where Jonah Hill's like, no, no, no, dude. No, I didn't mean it like that. Also very similar to Adam Cohen's clapback at Justice Thomas when Justice Thomas cited Adam Cohen's work on eugenics in his box versus Planned Parenthood concurrence. I appreciate that the scholars who are being misappropriated can actually rely – we can rely on them to correct the record. In any event, again, because I'm not one to say we told you so, but we did actually tell you so. We predicted in our recap that SCOTUS would uphold the CFPB and that the voting breakdown would basically involve Sam Alito and Neil Gorsuch versus everybody. And we were right.

Versus the economy. Versus not a recession. I'm going to prove to you I'm such an originalist. I'm willing to trigger the next great recession slash depression in the name of originalism. Financial catastrophe is required by originalism. It's a special arrangement sanctioned by history. But if you don't believe us, don't take our word for it here. We're going to roll the tape. We came with receipts. Here it is.

Good news, America. The Supreme Court does not seem eager to trigger a second Great Recession or depression and nuke the CFPB and declare a field day on other financial institutions. Having said that, Sam Alito does appear open to doing so. I also read Neil Gorsuch as like Great Recession curious. Maybe Thomas as well, hard to say. Honestly, I thought the Chief Justice did as well. I'm not sure like when it comes down to the actual drafting where he will be, but he was pretty, I thought, close to where at least Gorsuch and Thomas were during the argument. I mean, I do still agree with you. I think the Fifth Circuit gets reversed, but I wouldn't rule out 5-4. And that I think is completely insane because this case obviously should be 9-0,

but we're getting ahead of ourselves. All right. Now that we've made clear that we called this bitch, let's take a moment to reflect on what all of this says about the court, maybe a few other things too, right? So first, the fact that the Supreme Court is rejecting a theory that would likely usher in a great recession. I think there are going to be a lot of pundits who are like, this court, this is a moderate 3-3-3 court. This is a moderate 7-2 court, really.

Clarence Thomas, noted moderate. Is Clarence Thomas turning a new leaf? Will he surprise us? The thought pieces, right? Justice Thomas now in his Chief Thomas era is like, I'm going to be more institutionally minded. Rest easy, folks. That's what people are going to tell you, rest easy. But we're here to tell you, rest easy, that's actually not the case. We really want to sort of emphasize again here the important work, the important public service the Fifth Circuit is doing in allowing the Supreme Court to appear moderate while still being really conservative, right? So one, important to realize that the next Republican nominee to the court, if there is a Republican president, is going to come from the Fifth Circuit. And they are all auditioning right now, none more so than one of our favorites, Jim Ho, who never misses an opportunity to get up and sparkle for the Supreme Court.

Twirl. Twirl, bitch. Twirl. Twirl, bitch. Twirl. If we're doing Real Housewives of Atlanta, right, they all have their own characters. I'm gone with the wind fabulous. Exactly. Again, K.O.P.'s like, what? What?

Anyway, the next Republican nominee is definitely coming from the Fifth Circuit. So the Fifth Circuit right now is pulling this court to the middle because the Fifth Circuit is so far out there. But rest assured, when that next Supreme Court seat is filled by a Republican president, it's going to be from the Fifth Circuit. It's just going to bring the crazy. And so this sort of fake moderate court that we see now, one, not really moderate, it's really just responding to the crazy of the Fifth Circuit. And the crazy will come with a Republican president. So rest assured, like, this could be our new reality, literally bringing on a great recession, because originalism requires it. Well, and also the crazy is likely to come later this term. You know, this period is probably the calm before the storm. The court always does this, releasing a slower batch of more moderate, reasonable decisions before they go full-on freak flag, you know, some semi-normal decisions before they unleash the crazy. And then escape to boondoggles in Europe. Exactly. They pack them all into the very final few weeks of the term and then say, spirit fingers, we're out.

You know, mic drop, Clarence and Sam, we're done here. Hey, is this seat on a private jet occupied? Don't mind if I do. Don't mind if I do. And this is also something I wanted to call back to the episode we did when we recap the argument in this case, which is something Melissa has already said, which is this case is another occasion to remind people of the contrast we have drawn, including in this very case between the court and the Fifth Circuit. So we'll just play that clip here.

To me, the Fifth Circuit, they are like the elite strike force legal team. Just constant conspiracy shit beamed down from the mothership. That's their vibe. Whereas Kavanaugh, Barrett, and the Chief, they are the Bush campaign legal team, right? Like Bush versus Gore. That's crazy, but like, it's not elite strike force legal team. They are willing to go with arguments that have been cooked up and refined in the course of the federal society's last several decades, but not just whatever poo someone holds out to destroy a disfavored agency. And again, these things are different. right? They are both unhinged, radical, extreme, but they are different, maybe, you know, in degree rather than kind,

doesn't mean, right? This other group isn't also cray-cray, but. That's a great comparison. I'm going to resist one aspect of it, like to the extent that legacy media will not sort of delve into that nuance. I think it's partly because, one, it's not that nuanced. But I think when they talk about a 3-3-3 court with the chief and Kavanaugh and Barrett on one side, and then the other three conservatives on the other, and then the liberals, that's kind of what they're getting at. Like what you basically have within that block of six on the court is an internecine fight between what kind of Republican the conservative block is going

to be, like a Bush-era Republican, sort of very conservative, but not necessarily wackadoodle. Or are we going to go the full MAGA? And that's where the other three are. And I think we're seeing that play out. The three that get posited as moderates are really just Bush era conservatives. The fact that this case comes out of the Fifth Circuit, again, is because the Fifth Circuit is SCOTUS's PR machine, like better PR than Prince William, for sure. Because the Fifth Circuit makes the Supreme Court look semi reasonable. And it's not going to be the last time that this happens, like where the court will tack back from something insane

that the Fifth Circuit has done by issuing something that seems moderate, like avoiding a recession and dismantling the entire structure of government. We are probably going to see the court tack back from the Fifth Circuit in cases like Brahimi and FDA versus Hippocratic Medicine. But just because the court has rejected the Fifth Circuit's latest galaxy brain effort to blow up government as we know it does not make the Supreme Court reasonable or moderate. And in fact, they've still managed to move the court to the right even as they allegedly appear to be moderate. So don't lose sight of the ball here.

I think it's time to do some court culture where I feel like we really need to dig into what the Fifth Circuit is doing. Again, because the Fifth Circuit is essentially the PR arm of the court, doing crazy stuff so the court can look good. And first up, we wanted to cover an important voting rights case in the Fifth Circuit. The en banc Fifth Circuit, that is the full circuit, heard oral argument in a case called Pettyway v. Galveston County.

So this is a Voting Rights Act case about whether racial and language minorities could seek opportunity districts. And relying on those cases, plaintiffs challenged Galveston County, which had long had one precinct for the county commission that included a group of Black and Hispanic communities, which together make up about 39 percent of the county's population. But the Republican-led commission broke up the district and created four majority white districts. And so Galveston County voters challenged that under the Voting Rights Act. A district court said, you're right, that violates the Voting Rights Act. An initial panel of the Fifth Circuit agreed with them. And then the en banc Fifth Circuit intervened. They stayed the district court decision, allowing Galveston County to use a set of maps that had been invalidated. The Supreme Court denied a stay over that decision over a dissent by Justice Kagan, joined by the

other two Democratic appointees. And the Ombach Fifth Circuit now heard oral argument on whether it should overrule its prior cases, allowing coalition district claims under the Voting Rights Act. And the case went just about as expected. The opening statement of the lawyer who was defending Galveston County's maps and asking the court to end coalition claims, had this to say. Adopting or requiring coalitions would abrogate Jingles, Bartlett. It would violate the anti-representation provision of Section 2 and result in race-based redistricting with no

logical endpoint. And play this clip because we wanted to link this to the Voting Rights Act case out of Louisiana that we talked about last week, as well as more general development of the law and race-conscious remedies. This is the challenger to coalition districts equating race-based redistricting that seeks to represent racial and language minorities with race-based redistricting that attempts to disenfranchise racial minorities? And the idea that it would allow VRA-compliant redistricting with no logical endpoint calls to mind the Supreme Court's opinion in Students for Fair Admissions when they ended affirmative action, you know, because they didn't see an end in sight. And indeed, Judge Ho, twirling, twirling, twirling, invoked SFFA in this very argument, which you can hear here. Would you agree that discriminating in favor of a race, preferring a race, is the same thing as discriminating against other races. Yes. That's essentially the principle of the Harvard case.

Yes. So the future of coalition districts under the Voting Rights Act is up for grabs and is not looking great in the Fifth Circuit. It's part of what we want to underscore, which is that Allen v. Milligan is not the end of challenges to the Voting Rights Act. And indeed, we are likely to see many future voting rights cases make their way to the court in the aftermath of the 2024 election, underscoring the stakes for the court in that election. And I think at least I also wanted to tie it to the developments in the Louisiana case we talked about last week as well. Also, your point about Jim Ho's invocation of students for fair admissions versus Harvard reminded me of Brett Kavanaugh's concurrence in Allen versus Milligan, where he also cited

to that case, again, suggesting that individuals could in the future challenge the VRA on grounds similar to the challenge to affirmative action, and that may prove successful. I mean, here is Jim Ho ventriloquizing that same kind of logic. So again, no end in sight for this. On a positive note about this oral argument, it was really great to see Judge Dana Douglas, who's one of President Biden's recent nominees to the Fifth Circuit, really get in here. And she was sort of no-nonsense, straight to the point, trying to dismantle some of this logic. So let's hear a clip from her. In fact, the United States

makes a very telling statement in its brief. In this case, they write, coalition plaintiffs have in common that they enjoy less political opportunity than other voters on account of race, color, or language minority status as a result of the district and plan, meaning that we can't win. So we have to have another group. And what do we enjoy together? Political opportunity. On the account of race and the other things that are stated there. I'm sorry? On account of race and the other things stated there.

You can't read that out of the statement that you just read, correct? Love to hear it. It looks really grim, but I'm glad people are staying and fighting. And on the topic of voting rights more generally, SCOTUS state, a three-judge decision invalidating the Louisiana legislature's remedial map, and this clears the way for a second majority-minority district and an opportunity for representation and multiracial democracy in Louisiana's congressional delegation. This was the case that Leah and Kate previously discussed that Leah just alluded to. Tory Wagner joined them to talk about it. And it arises out of the Louisiana legislature's enactment of their preferred map to remedy their previous violation of the Voting Rights Act.

But a district court found the map that they initially enacted violated the VRA. And after SCOTUS allowed the remedial proceedings in that case to move forward, the legislature adopted a map creating a second majority minority district before the court drew one and the legislature drew a map that protected the Republicans preferred representatives and jeopardized a representative who had not towed the party line. So again, redistricting totally on the up and up super not political, very nonpartisan, whatever. A three judge district court found the remedial map was likely unconstitutional. And that's the decision that the Supreme Court stayed allowing the Louisiana legislature's new map with two majority minority districts to go into effect. So this is a real victory for the

Voting Rights Act in many respects and hats off to the team at LDF that argued this case. We will note that there are some ominous kind of elements to this. And so here the court cited Leah Purcell, which I think is really worth talking about. And it sort of took a very expansive understanding of the Purcell case. So can you explain to our listeners what Purcell is and why this expansive understanding of Purcell is really problematic? Yes. So Purcell is the case that said courts should be wary or hesitant to change election rules in too close of proximity to an election, lest there's a risk of voter confusion. And the idea that that principle has any application in redistricting cases is a little odd, of course, because the legislature doesn't have a status quo that it can use in the absence

of districting that complies with updated population totals from the census, for example. So we've criticized the application of that principle before. And second, by invoking Purcell, you know, the court basically just took the legislature's statement that they needed this resolved by May at its word, even though, as Justice Jackson noted and as the trial proceedings had suggested, actually the legislature and the remedial process could have determined a set of maps in June, you know, without doing any real violence to the election system and administration in Louisiana. And so the combination of applying Purcell to redistricting, taking a legislature statement at its word that they need this resolved now, rather than actually

peeking under the covers is concerning, as is the fact that they did not put the kibosh on the theory that the three-judge district court used to invalidate this remedial map, which again had equated redistricting that complies with the Voting Rights Act as itself a kind of impermissible racial discrimination in redistricting. So all of that is to say, of course, it is great news that Louisiana will have more meaningful representation in its congressional delegation. But the fight over voting rights, the Voting Rights Act, is not finished. And that's part of why we wanted to highlight the Fifth Circuit case on coalition districts. There's actually another voting rights case that the Fifth Circuit heard en banc that, again, I think putting all of these on the table underscores the threats to voting rights and the

Voting Rights Act. So the other case that the Fifth Circuit heard en banc is Chisholm v. Louisiana, and that case concerns Louisiana's request to dissolve a consent decree that was adopted in 1992 to ensure that Black Louisianians could elect one out of seven members of the Louisiana Supreme Court. Before that, there had been zero Black justices on the Louisiana Supreme Court. Since then, three have been elected to the seat created by this consent decree. And Louisiana is now like, we'd like to redistrict and potentially eliminate the opportunity district and seat for the Louisiana Supreme Court.

Jurismandering. Right, right, jurismandering. And district court and Fifth Circuit panel denied the request to dissolve the consent decree. The Fifth Circuit heard argument en banc, never a good sign. And again, I just want to put this alongside the coalition district case to show that states and municipalities are in the process of attempting to break up the edifices of multiracial democracy, like the representation that the Voting Rights Act and affirmative litigation has been able to secure at the same time that the court is basically saying, let's wait to do like a little bit more on voting rights for a while. So these are, again, part of the stakes of the

upcoming election when you are thinking about the court and the matters it is going to be called upon to weigh in on. All right. That was some heavy stuff. So some, I guess, you know, some glimmers of hope there. But again, just some real harbingers of more ominous developments that people need to keep their eyes on. But on a lighter note, I know we joke in this podcast about how basically everybody can run circles around Brett Kavanaugh, but it's actually true in this case. So Seth Stern at Bloomberg Law reports the results of the three-mile Ackley Capital Challenge in which one Brett Kavanaugh finished the three-mile race on Wednesday in 24 minutes, 20 seconds, which is slightly behind his 2023 pace. It also notes that Solicitor General Elizabeth Prelogger, who participated on the team,

quote, racing in the morning suits us, end quote. Fairly good pun, I think. Well, the Solicitor General finished the race in 22 minutes and 23 seconds. Justice Amy Coney Barrett, who was part of the SUA Sprinte team, I kind of like that one, finished the race in 26 minutes and nine seconds. And she was ahead of Katonji Brown Jackson, who wore a t-shirt bearing the name Junior Justice League and finished in 33 minutes and 24 seconds. Props to all these people for running because who the fuck wants to run if they're not being chased? Not me. I mean, I enjoy running. And I like the idea of Elizabeth Prelogger beating Brett Kavanaugh by almost a full two minutes.

By a full two minutes. That's enjoyable to me. And also, I have to imagine that Brett Kavanaugh is one of those people who lines up with the fast people at these races, even though he's running like an eight minute mile pace. I just I just see that. Eight minutes is fast. I'm like, I'm generally no shame. Well, Elizabeth Breelager was faster. Here's the thing.

Brett Kavanaugh also assembles a team with ringers. So his team, yeah, he tries to recruit like all of the fastest people in the judicial branch whether they are law clerks for other people marshals chambers assistants he's like can you run a five minute mile if so you can be on my team do you think is that really true are you lying yes no i'm not okay this is how. How do you know this? I just know. I just know. You're not going to reveal your source? Okay.

Nope. Nope. It was Martha Annalito. In the library with the candlestick. With a fax machine. So we know that many of you are wondering about the happenings at the various circuit court conferences. Don't worry. We're going to cover that.

The justices have been out on parade talking it up to their favorite lower court judges at these various judicial conferences. We're going to cover all of that. But we're out of time today because, once again, Justice Alito just sucked all the air out of the room. Or rather, Martha Ann sucked all of the air out of the room. Content queen. Content queen. Content queen flying that freak flag.

So we're going to come back to that. But on a sadder note, we did want to mark the passing of Christopher Edley of Berkeley Law. Dean Edley first made history when he graduated from Harvard Law School. He was the first African-American legacy student to graduate from the law school. His father, Christopher Edley Sr., had done so many years earlier. But where Dean Edley truly distinguished himself was as a standout on policy matters in both the Carter and Clinton White Houses. He is credited with persuading the Clinton administration to defend affirmative action, noting that the policy had done tremendous good in promoting social mobility for those who had been historically excluded from the major institutions of public life and that it should be mended, not ended. And of course, the Clinton administration went on the deanship at Berkeley Law in 2004. And this was an appointment that made him the first African-American to serve as dean of a top law school.

He served in that capacity for almost 10 years before stepping down to fight prostate cancer. During his deanship, he was credited with truly transforming Berkeley law by hiring a raft of new faculty, full disclosure, I was one of them, and also starting major research centers, including centers that mimic the center that he and Gary Orfeld had founded at Harvard Law School, the Civil Rights Center at Harvard. At Berkeley, he founded a raft of centers, including the Berkeley Center on Reproductive Rights and Justice, of which I was a part, as well as CHEFS, the Berkeley Center for Health, Equity, and the Family. And most recently, his service to the Berkeley campus included serving as interim dean of Berkeley's Graduate School of Education. And he is survived by his wife, Maria Echeveste, whom he met while they were both serving in the Clinton White House, as well as his three children. We are deeply

sorry for Dean Edley's loss. He's truly an amazing person, an amazing leader, and so supportive of young scholars. And we felt it was worthwhile to highlight his tremendous work and to mark the sadness of his passing. May his memory be a blessing. So we have a few administrative matters to cover. One is a reminder, and that is, if you're a regular listener, we would love to hear from you. And if you're up for it, we'd love to hear from you in your actual voice. So we're asking you to record voice memos telling us a little bit about yourself, your name, maybe what you do, especially if it's something cool like reindeer herding, and where you tend to listen to the podcast, any favorite episodes or guests or moments. You can send those to us

at strictscrutinyatcrooked.com. That's strictscrutinyatcrooked.com. And if for whatever reason you don't want to send a voice memo, you can just send an email to that address and we can have Melody read some of them. And we're going to include that as kind of a marker for the occasion of our five-year podcast anniversary. And now for a few words from the Crooked team. You already know the stakes of the 2024 election.

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